IRELAND V THE UK AND THE HOODED MEN: A MISSED OPPORTUNITY?

Strasbourg Observers

Written by Dr Alan Greene, Assistant Professor at Durham Law School*

In Ireland v The United Kingdom, the European Court of Human Rights (ECtHR; the Court) in Chamber formation refused to revise its 1978 judgment regarding whether British security forces’ use of the so-called ‘five techniques’ of interrogation during the conflict in Northern Ireland amounted to torture under Article 3 ECHR.  In so doing, the ECtHR missed an opportunity to correct an historic wrong; one that has had a pernicious effect across the globe. In contrast, the dissenting judgment of Judge Siofra O’Leary strikes a more persuasive balance between legal certainty and the public interest in holding a state to account for ‘a serious violation of the European public order.’

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Dundalk attack shows why need to be careful with our use of terrorism as a concept

dundalk courthouse

Dundalk Courthouse. Image credit: http://bit.ly/2AxFe1a

As someone from Dundalk, I woke up on Wednesday to the shocking news of the horrific attacks that left one person dead and two others hospitalised. When acts of senseless violence occur, it is natural that people search for explanations; to make sense of the senseless. One of these explanations that is frequently proffered in the aftermath of such attacks is terrorism. In recent years across Europe and the rest of the world, terrorist attacks have become more low-tech to the point that knife attacks can constitute terrorism and in this regard only, the attacks that took place in Dundalk were somewhat redolent. It subsequently transpired, however, that Gardaí could find no link between this act and other Islamic extremist attacks in the world; i.e. no motive that would make this a terrorist attack could be identified.  

 What is terrorism anyway?

Terrorism is a very loaded term lacking an agreed definition. Legal definitions of terrorism are, generally speaking, not drafted solely for the state to have a condemnatory label at its disposal. Rather, they are—or they should be— linked to the perceived need for special counter-terrorist laws. Specific terrorist crimes, for example, tend to be different from ordinary crimes. They are offences created so that police do not have to wait for an attack to occur before they can intervene and prosecute.  Rather, terrorist offences tend to be what are called inchoate offences: they are generally offences that criminalise an individual’s actions at the preparatory stage, before they can carry out their attack. In this way terrorist offences are drafted to allow police to ‘defend further up the field’, intervening before an attack happens. A legal definition of terrorism is necessary to do this. For example, it should help to distinguish the ordinary farmer who is buying fertiliser from the person who carries out the exact same act of buying fertiliser; however, their purpose is to manufacture a bomb.

 However, when ‘terrorism’ is used in everyday discourse by people, the media or even politicians, they are generally not applying the legal definition of terrorism. Sometimes the term ‘terrorism’ may be used to try and make sense of the senseless. It may be used to describe political violence and, in particular, to de-legitimise certain forms of political violence. Other times, the motive for labelling something terrorism may be less benevolent.

 The Reaction to the Dundalk Attack

Following yesterday’s horrific attacks in Dundalk, a large number of people took to Twitter to speculate that this was a terrorist attack based solely on the (false) belief that the attacker was from Syria. Some questionable media outlets such as TheLiberal.ie also jumped to this conclusion. Myself and others were then subjected to a barrage of abuse when we stressed caution in labelling this attack as terrorist-related. Many of those hurling the abuse and speculating that the attack was terrorism self-identified as Irish ‘ethno-nationalists’; i.e. they were far right ideologically with explicit racist beliefs as to who should be allowed live in the state. Their primary reason for conjecting that what happened in Dundalk was terrorism was the false rumour that the attacker was Syrian. The irony (and hypocrisy) of Irish people concluding that a person is a terrorist based solely on their nationality is particularly amplified given that the attack took place in Dundalk, a town acutely affected by the Troubles.

 What this incident shows is that there are many groups which have a clear agenda when using the term ‘terrorism’. They use the term not to try and make sense of an attack or even to condemn it; rather, they label it as terrorism in order to exploit it to further their own poisonous ideology. One need only look to the UK to see that the rise of far-right extremism has gone hand-in-hand with the perceived increase in the threat from Islamic extremist terrorism.

 Conclusions

What this incident also shows is that while Ireland has often been busy patting itself on the back for not seeing a rise in support for far-right anti-immigration parties as seen in other European states, there can be no room for complacency. On this note, Renua Ireland demanded that the Government recall the Dáil early in order to discuss the ‘public concern on the Dundalk stabbings’. This call came before Gardaí confirmed that no link to international terrorism could be established. 

None of this detracts from the terribleness of what happened in Dundalk. A crime does not have to be an ‘act of terror’ for it to be condemned. Surely, the senseless killing of an innocent man going to work is an evil enough act in and of itself?

 You can donate to the fund to help with the repatriation of Yosuke Sasaki’s body to Japan here.

Of course Ireland was going to be a thorn in the side of Brexit— has history taught us nothing?

crossmaglen

A now demolished British Army watchtower near Crossmaglen, Co.Armagh

Many people are still shaking their heads in confusion, struggling to comprehend the fact that the UK voted to leave the EU in June 2016. While rational explanations for the result have been proffered, the consensus appears to be that there is not one to be found. Brexit was, instead, a hugely emotive decision. Brexit stirred up something in the hearts of many British people: a nostalgia for empire, a fear of the other, or the emotive promise to ‘Make Britain Great Again’. Indeed, the very fact that the DUP supported Brexit despite all warnings as to what this may mean for the future of the UK should have been a strong warning sign as to the strength of emotions in the Brexit debate.

Similarly, there are many rational reasons as to why Ireland is resisting any attempt by the UK to impose a hard border. Economic factors feature highly in this debate, as do security and practical concerns. Many seem to have forgotten, however, that, like Brexit itself, the border in Ireland was, is, and will be an incredibly emotive issue. These emotions must be addressed or any attempt at a solution to the ‘Irish question’ will fail.

The Border Today

The border between Louth and Armagh along the N53 road looks like this today:

 border

This same road (now called the A37) continues for another 5.5km (or 3.4 miles if you wish) until it crosses the Fane river and re-enters the republic (or the south if you wish) in County Monaghan:

 fane bridge

The beautiful ambiguity of the Good Friday Agreement that made peace possible is illustrated by these two pictures. The only indication that you are entering a different jurisdiction is the change in road markings and the road signs alerting you to the fact that the speed limit is now in miles per hour. The big constitutional question is pushed to one side. It is not forgotten but it is also not acknowledged except for whatever practicalities are required. It is still there but you have to look for it. If you don’t want to see it, you don’t have to.

 

 Irish emotions and Brexit

Brexit will change this. Brexit has to change this. If the UK continues its current negotiating strategy, Brexit will make the border un-ignorable. The impact will not just be practical but emotional too. When Irish emotions concerning the border are raised in the Brexit debate, it is usually done in a foreboding tone, warning at the possible return to violence. While this is a genuine concern, it is only a tiny minority of a minority that would consider this a legitimate response. Rather, the emotion dominating the vast majority of people living in border communities will be a profound sense of sadness and fear. Sadness that the spectre of the past has come back again more visible than in decades, and fearful as to what the future may bring.

 Anger will, undoubtedly, be felt too and faux surprise from the rest of the UK establishment that Ireland is an unforeseen stumbling block in the Brexit negotiations is particularly irksome. Likewise, Irish anger will not be defused by patronising op-eds conjuring up images of the Irish border as being about the rural peasantry smuggling a few milk churns, or hot takes calling for the Irish Prime Minister (because Taoiseach is not a word the British are familiar with) to behave himself  and stop acting like the bold little child that he is.  Indeed, it was almost inevitable that eventually certain parts of the British media would resort to crude, borderline racist Irish stereotypes reminiscent of the political cartoons of the Victorian era.

 Lessons from History?

Surely, if one were to reach back to Victorian Britain, rather than just look at the cartoons for some artistic inspiration, they would take heed from the defining issue of late nineteenth century British politics: Irish home rule. The magnitude of this question divided political parties and ended numerous careers; left an indelible mark on British constitutional law; and, ultimately, ended up in secession, violence, and the birth of a new state. In short, the question was not easily resolved and arguably has not been resolved to this day.

When, therefore, has a solution to anything between the UK and Ireland been straightforward? The answer is never. Merely talking about Ireland reveals insights into one’s particular political perspectives. Is it Northern Ireland or the north of Ireland? Ulster or The Six Counties? Is it Ireland, the south, the republic (should ‘republic’ be capitalised?), or the 26 Counties? Are we talking about the ‘Irish border’ or the ‘British imposed border in Ireland’?  The Good Friday Agreement, as illustrated by the pictures above, left the big questions to one side; perhaps for final resolution in the future when the passage of time would make them more manageable. Perhaps this perpetual suspension was itself the lasting resolution. Brexit has shattered this illusion, and sparse, disingenuous policy papers outlining ‘trusted traders’ and electronic customs regulations will not mend this carefully negotiated ambiguity.

 

Image Credit: http://bit.ly/2AD4ibt